*1 1116 to at least two level decrease
еntitled disagree. America, minor role.”7 We [a] UNITED STATES of
Plaintiff-Appellee, sentencing A court’s determina v. Sentencing tion the Federal Guidelines under CANCELLIERE, Charles S. in the offense is a of a defendant’s role Defendant-Appellant. v. finding. factual United States Castillo- No. 94-2300. (11th Valencia, 494, Cir.1990), F.2d 501 917 denied, 925, 1321, 113 111 S.Ct. cert. 499 U.S. Appeals, United States Court of (1991). do not disturb L.Ed.2d 253 We Eleventh Circuit. findings sentencing court’s of fact absent 29, Nov. 1995. Davis, v. 902 clear error. United States (11th Cir.1990). Nevertheless, 860, Amending Judgment F.2d Order on Grant sentencing we de novo the court’s review of Clarification Feb. 1996. Sentencing application to Federal Guidelines Rodriguez, v.
those facts. United States (11th Cir.1992),
F.2d cert. de
nied, —, 113 S.Ct. U.S. (1992).
L.Ed.2d 563
Based on the evidеnce adduced at trial and pre-sentencing hearing, the district court
ruled that the defendant was not a minimal participant in
or minor the offense and was
therefore, to a reduction in not entitled his Specifically,
offense level. the district court although
found that Reid did not fill a leader-
ship he and conspiracy, role the other
co-conspirators culpable were no less than agree findings.
the leader. with these We
Accordingly, we find no clear error in the
denial of Reid’s claim for a reduction
sentence.
IV. Conclusion
After a careful review of the record and arguments presented, we find no basis on evidence, suppress
which to disturb the ruling regarding
district courts’s the admis-
sability of nor disturb the sentence Therefore,
imposed. judgement below is
AFFIRMED. Appellants
7. brief at 45.
1H7
I. BACKGROUND During period, time the relevant Cancelli- at ere was a bank officer several banks Florida. Between December *3 nu- December of Cancelliere secured merous unsecured loans from three different 1, 2 banks. Counts and 3 of the Indictment allege that Cancelliere committed bank fraud by misrepre- § in violation of 18 U.S.C. 1344 senting to three different banks his assets allege and liabilities. Counts and 5 Cancelliere made false statements to a finan- cial institution violation 18 U.S.C. by § representing to a bank that he Daily Publishing owned stock News (Count 4) Company by representing to a and beneficiary different bank that he was the Pittsburgh, Pennsylvania a trust account FL, Jung, Jung, Tampa, Black & William (Count 5). allege Counts 6 and 7 that Can- Appellant. for money laundering eelliere committed in viola- Atty., Phipps, Tampa, Tamra Asst. U.S. § writing tion of 18 two U.S.C. FL, Trúncale, Atty., Charles Asst. U.S. Jack- checking personal checks from his account sonville, FL, Johnson, and Vickie L. Asst. knowing represented pro- cheeks FL, Atty., Tampa, Appellee. U.S. illegal activity. ceeds of objection, government Over was al- to into lowed introduce evidence three letters written to Cancelliere his deceased father. HILL, BLACK, Judge, Before Circuit pur- The first letter discusses father’s *, Judge, and ALAIMO Senior Senior Circuit Daily chase of his son’s stock in the News Judge. District Publishing Company. The second letter states that Cancelliere’s mother’s estate no HILL, Judge: Circuit Senior longer existed. Caneelliere’s father also appeals Charles S. Cancelliere his convic- longer help wrоte that he would no his son tion and sentence on each of three counts of financially suggested and that Cancelliere § bank fraud in violation of 18 U.S.C. jewelry financial sell his to ease his situation. two counts false statements insured letter, In the last Cancelliere’s father offered depository institutions in violation of 18 financial advice on how to deal with his credi- money § U.S.C. and two counts of tors, but criticized Cancelliere for his self- laundering in violation of 18 U.S.C. indulgence profligacy. 1956(a)(1)(A)®. § Cancelliere was convicted objection, Also over intro- jury on all counts after a trial and sentenced аllegedly duced evidence of other fraudulent fifty-seven imprisonment months as to transactions which not count, are or men- running each with all counts concur- rently, tioned the Indictment. Under Fed. by thirty-six months of su- followed 404(b), reasons, permit- R.Evid.Rule the district court pervised following For release. ted the to introduce evidence we affirm his convictions and sentences on (1) 1-5, obtained a fraudulent Counts and reverse his convictions and Diaz; sentences on 6 and 7. loan from an individual named David Counts * Alaimo, Anthony sitting by designation. Honorable A. Senior U.S. Dis- Judge Georgia, trict for the Southern District of
1H9
(2)
specified
activity....”
to two banks other
ceeds of
made false statements
unlawful
(3)
Indictment;
§
than those named
U.S.C.
1956. The
introduced
personal checking
bounced checks from his
evidence that Cancelliere wrote two checks
personal
on
account.
bank account into which he
deposited
proceeds
had
of the fraudulent-
trial,
government sought
At
ly-obtained loans. The district court
in-
money laundering
by establishing
counts
structed the
that “the Government need
(1)
proceeds
deposited
that Cancelliere
money
that all of the
involved in
fraudulently-obtained
per-
loans into his
proceeds
the transaction was the
of bank
(2)
account;
checking
sonal
that some of
fraud.
It
is sufficient if the Government
against
the checks he wrote
this account
proves
money
that at least
repre-
pay
fraudulently-
were to
interest on the
*4
proceeds.”
sents such
loans.
obtained
appeal
Cancelliere does not contest on
that
evidence,
govern-
of the
the
After the close
deposited
there was evidence that he
fraudu-
“willfully”
the
ment moved
strike
word
proceeds
checking
lent loan
into his
account
from Counts 6 and 7 of the Indictment which
or that he wrote two cheeks from this ac-
“knоwingly
Cancelliere with
pay
count to
on
interest
his loans. He con-
willfully” committing
money
the offense of
tends, however,
government
that the
failed to
objection,
laundering. Over
the district
prove
money paid by
that the
these cheeks
permitted
court
this redaction.
previously deposited
came from
fraudulent
proceeds,
part.
loan
in
in
either
whole or
II.
ISSUES
argues
enough
Cancelliere
that it is not
A. Was the evidence on Counts 6 and 7
government simply
the
to show that fraudu-
(money laundering)
prove
sufficient to
proceeds
checking
lent
loan
went into his
that
the financial transaction in eаch
point,
account at some indefinite
and that
proceeds
specified
count “involved”
of a
subsequently two checks were written from
activity
required by
unlawful
as
18
pay
this account to
interest on the loans if
§
U.S.C.
1956?
account at
issue has other sources of
striking
B. Did the district court err in
deposit. He contends that because the
“willfully”
word
from
6 and 7 of
Counts
checking
many legitimate
account contained
the Indictment after the close of evi-
deposits, including
salary deposits,
dence?
government
money
failed to
C. Did the district court abuse its discretion
paid by
previously
these checks came from
admitting
in
letters written
Cancelli-
deposited
proceeds,
loan
in
fraudulent
either
in
ere’s deceased father
violation
Cancelliere,
According
part.
whole or in
hearsay rule.
salary
legitimate deposits paid
or other
these
D. Did the district court abuse its discre-
two checks.
admitting
in
evidence of several oth-
tion
1956(a)(l)(A)(i),
§
To convict under
er fraudulent
transactions as extrinsic
government
proving
bears the burden of
be-
404(b)?
evidence under Rule
yond
party
doubt that the
en-
reasonable
gaged in
that
the transaction knew
the funds
III. DISCUSSION
represented,
part, pro-
used
in whole or in
Money Laundering
A.
activity.1
specified
ceeds of a
unlawful
Can-
government
money
argues
In order to establish the
celliere
that unless the
crime
laundering,
proved
pay
that
written to
must
checks
actually paid
...
a financial
interest on his loans were
at
“eonduct[ed]
fraudulently-obtained
pro-
part
transaction which in fact
least
in
with
involve[d]
ing
§
1. At
in
Control Act of 1986 does not include
1344
the time of the offenses
Counts
"specified
"specified
under the
unlaw-
the definition of
unlawful activ-
bank fraud offenses
definition,
1956(c)(7)
although
ity”
activity”
§
it does include
at 18 U.S.C.
included bank
ful
involving
§
false statements to banks un-
fraud offenses under 18 U.S.C.
1344. The
оffenses
Money
§
der 18 U.S.C.
1014.
current amended version of the
Launder-
funds,
carry
agree
government did not
its bur-
id at 840. We
and hold that
Section
1956(a)(1)(A)© allows for convictions where
den.
the funds involved
the transaction are
The issue is whether
commingled
derived from a
account of which
origin of all
required
should be
to trace the
only
“specified
from
comes
unlawful
deposited
account to deter-
funds
into a bank
activities.”
exactly
were used for what
mine
which funds
The evidence
this case was
Cancel-
Although
character-
transaction.
Caneelliere
$80,000
fraudulently
liere
obtained over
sufficiency
as оne of the
izes this issue
systematically deposit-
loans from banks and
initially
we believe that
it is one of
proceeds
personal
ed the loan
into his
check-
statutory
requires
construction. The statute
Thereafter,
ing account.
Caneelliere wrote
proceeds
that a transaction “involve” the
pay
two
on
account to
inter-
checks
this
activity
participant
an
which the
knows is
juror
est on these loans. A rational
could
Congress
question
unlawful. The
is what
find that the
sustained its bur-
intended
the word “involve.”
beyond
proving
den of
a reasonable doubt
payment
al-
Caneelliere’s
the checks
Although
question
yet
this
has
been
leged
pro-
Counts
“involved” the
circuit,
persuasive
answered in this
we find
fraudulently-obtained
ceeds of his
loans and
reasoning of the
Seventh Circuit Unit
*5
regarding
we find no error
this issue.
(7th
Jackson,
ed States v.
H21
case,
have held that “a fundamental
this
moved
We
the district
principle stemming
requirement
from the
amend
court
they
[fifth]
delete the
only
is that a defendant can
be convict
prepared
ment
willfulness after Cancelliere
charged in
put
for a crime
the indictment.”
upon good
ed
on a defense based
faith.
Keller,
628,
Although
v.
916 F.2d
United States
the inclusion of the term “willful”
(11th
denied,
Cir.1990),
cert.
499 U.S.
government,3
was a mistake
(1991).
charge
jury
111 S.Ct.
Furthermore, readily re- statements to the that the statements this issue is not correct that were false. is solved. The was an state of mind proof of Cancelliere’s judge The dissected situation with the case, are and that the letters of its element scalpel of instruction to the to consider is also that state. Cancelliere probative of proper purpose the letters for the and not to correct, however, that unless the statements any improper— consider them for other — true, i.e., the trust that in the letters were above, purposе. As we noted there is would no and the father fund was exhausted jurors danger that will consider such letters financially, were longer him the letters assist improper purpose for the truth. Nev- —their If in fact Cancelliere did have irrelevant. ertheless, expect jurors we to follow instruc- guilty of fund could not have been trust he tions. underlying making false state- crime Furthermore, danger, if there be such it is con- the truth of the statements ments. So puts gov- assumed the defendant who is not unrelated to their tained in the letters proof knowledge of his ernment its proving state of relevance in Cancelliere’s protests ready-at-hand proof then that its mind, as in Harris. knowledge might harm that him. Nevertheless, persuaded are we conclude, therefore, We that the letters hearsay. inadmissible The letters were not hearsay prove were not when admitted to required two government was state of mind. Cancelliere’s (1) It that Cancelliere things. had to (e.g., to the banks that made false statements D. Evi- The Admission Extrinsic fund; beneficiary of a trust that he he was dence father, help from his could count on financial permitted evi- The district court extrinsic (2) eie.); knew that the that Cancelliere (1) following categories: dence were, fact, falsе. statements testimony regarding an un- of Dennis Diaz (2) loan; involving un- evidence statements, the circum The under (3) statements; evidence false here, patina at least a of truth. stances bore that bounced checks from his Cancelliere had, time, in a at one an interest personal checking account. fund; had received substantial funds trust he mounted a from a well-to-do father. He Diaz testified that Cancelliere obtained persuasive that he believed he still defense from an institution not fraudulent loans There was had access to these resources. government main- charged in this case. The long- proof fund was ample the trust tains, however, testimony this is not depleted family assets were no since and the inextricably it is inter- extrinsic because longer to him.4 The letters went to available charged crimes. twined with evidence knew these facts at the time he show he involving uncharged false The evidence misrepresented them because he had been through a witness named statements came advised, *8 specifically, that these sources Passer, who testified that Cancelliere filed gone. funds were Chapter bankruptcy after accumulat- Seven many from ing substantial unsecured debts nоt be considered as The letters could banks, uncharged Can- including two banks. funds were non-existent or evidence the testimony However, that Passer’s per- celliere contends if the was unavailable. 404(b) beyond purpose of Rule be- the by of the truth of the went suaded other evidence letters, testimony government through this proper it was cause matters asserted in the letters, to the conclude, that Cancelliere’s debt jurors established for the to from discharged in charged was bank- three banks knew when he made the that Cancelliere during cross-examination, trial and might both before 4. Our result be different if fact, in going was, trust fund evidence that his mother’s depleted had not introduced independent representing he was still he was letters. at the times the truth the matters asserted in the to receive in fact he would its and that contains, however, evidence, The record beneficiary, ample financial from his father. including no further admissions made the defendant help by Cir.1986). (11th uncharged ruptcy. The two banks filed ad- 1531-1532 Further- more, 404(b) versary complaints alleging apply fraud in the non- Rule does not where the “context, motive, evidence concerns dischargeability bankruptcy proceeding. set-up of the crime” аnd is “linked in time The district court admitted into evidence the crime, charged circumstances with the or govern- bankruptcy entire court files. The integral part forms an and natural of an proper ment contends that this evidence is crime, necessary account 404(b) or is to com- going to Rule evidence show knowl- plete story jury.” of the crime for the intent, edge, or absence of mistake or acci- Williford, United States v. 764 F.2d dent because made certain ad- Cancelliere (11th Cir.1985). bankruptcy concerning ease missions representations charged his to the banks. (1) testimony regarding The of Diaz Finally, introduced evi- Although bank fraud was not extrinsic. charged, dence that bounced checks from alleged Cancelliere these loans were the bank personal checking his account. Cancelliere fraud counts as of the manner and contends that this evidence did not involve means which Cancelliere carried out his Rather, any scheme to defraud. it scheme to defraud. served Cancelliere understated only uncharged govern- to establish bad character. The liabilities to the institution in order responds charged ment obtain loans from the that this evidence is linked in banks. In allegations, view of these charged time and circumstances with the the evi 404(b) dence was not extrinsic and Rule provides crimes and a context for is inapplicable. charged jury. crimes for the Cancelliere asserts that all the (2) extrinsic The bankruptcy evidence evidence allowed the district court was files established that Cancelliere testified at highly prejudicial, unnecessary gov- to the meeting a creditors’ any that he did not own case, only ernment’s and served to establish Daily shares of the News stock on the date propensity, permissible rather than some that he had told one of the banks that he did 404(b) purpose under Rule such as absence order to secure a loan. The files of mistake or accident. also signed demonstrated that he a financial claiming ownership statement of a trust fund 404(b) provides Rule that “[e]videnee $195,000. valued at Finally, bankruptcy crimes, wrongs, of other or acts is not admis files agreed revealed that Cancelliere to ex person sible to the character of a empt bankruptcy portion from of two loans conformity order to show action in therewith. he uncharged obtained from institutions be may, however, It be admissible for other cause he had through obtained them fraudu purposes, motive, proof opportuni such as representations. lent This al ty, intent, preparation, plan, knowledge, iden extrinsic, though properly was admitted un tity, or absence of mistake or accident....” 404(b) going der Rule knowledge, as intent permits The rule the introduction of evidence plan. time, or At the relevant prior uncharged of a or act if the making misrepresentations the same (1) can proper purpose demonstrate: uncharged making banks as he was to the (2) evidence; introducing prior prejudice banks. The having act occurred and that the defendant was the jury hear of two more victims was minimal in (3) actor; probative value of light of the repeated evidence of his fraudu introducing outweighs any prej the evidence representations lent over the course of the udicial might effect the evidence have. Unit years alleged four in the Indictment. The Perez-Garcia, ed States v. 904 F.2d *9 probative outweighed value this evidence (11th Cir.1990). 1544 prejudicial its give effect. The district court activity Evidence of criminal appropriate oth an limiting instruction which was charged, however, er than the offense agreed upon by рarties is not at the time of inextricably if it evidence is extrinsic inter admission final instructions. There twined with the evidence of the of was no abuse of discretion in the admission Collins, fense. United States v. 779 F.2d of this evidence.
1125 (3) trial, evidence, that the evidence the end of after the close of contends Cancelliere funds concerning his issuance of insufficient the term was deleted from the indictment improperly admitted to establish checks was and was not included the instructions to 404(b). in violation of Rule bad character jury. Although I believe the evidence government’s position is that the evi The might supported guilty wеll have a verdict of in time and circumstances dence was linked “willfully” remaining, with the term that is an inte charged crimes and formed with the Deleting “willfully” not the issue. at the last and natural of the account gral credibility minute undermined the of the de- crimes, complete and was admissible attorney it im- fense to the extent that was jury. story of the crimes for the See Willi possible argument for him to make a credible at 1499. ford, 764 F.2d jury. prejudicial, to the The redaction was testimony concerning the bad The and I therefore concur in the result reached president of through checks came majority. employed. Af bank whеre Cancelliere checks, the wrote the bad ter Cancelliere 2, Feb. 1996 president with him on several different met regarding counsel him his finan occasions to BY THE COURT: sessions, During of these cial situation. one Appellant’s rehearing/clarifica- “motion for had understated admitted he Cancelliere tion,” clarify as a motion to construed this charged banks. The his debt to one of the opinion, judg- is Court’s GRANTED. The therefore, in, through the admission came by adding: ment is amended “This case is context of the bad check discussions between president. and his bank Such pro- REMANDED to the district for further Williford, not extrinsic under evidenсe is ceedings consistent herewith.” 404(b) inapplicable. Rule is
IV. CONCLUSION on Counts 6 and 7 were
The convictions redaction of upon
based an unconstitutional Hav- and are REVERSED. the Indictment DUPO, Petitioner, A. Severino admission of the ing found no error v. convic- or the extrinsic letters are AF- tions and sentences on Counts 1-5 OFFICE OF PERSONNEL FIRMED. MANAGEMENT, Respondent. BLACK, Judge, specially Circuit No. 95-3088. concurring: separately I I write as to the concur. Appeals, Court of United States “willfully” from counts redaction of the term Federal Circuit. 6 and 7 of the indictment. 31, Oct. 1995. closely re I view the redaction as more Denied; Suggestion sembling Rehearing a variance than an amendment1 therefore, must, question consider Reheаring In Declined Banc prejudicial. whether or not the redaction was 21, Dec. 1995. Keller, (citing at 633 United States 916 F.2d (11th 1375, Figueroa, 666 F.2d Cir. v. 1982)). case, attorney In this the defense around the inclusion built his entire defense “willfully” At the indictment.
of the term
(1985).